Belgium / Constitutional Court / 77/2018 E.M. and the non-profit organisation “Aimer Jeunes” v. Belgian State

Key facts of the case

The Act of 6 July 2016 amends the Judicial Code concerning legal assistance. To determine if a person qualifies for legal assistance, the Order of Lawyers is no longer required to merely take into account the income of the person applying for aid. Instead, they will have to take into account all means of livelihood. In essence, the scope of the mDoes the fact that the offices for legal assistance (part of the Order of Lawyers) are mandated to investigate all means of livelihood, instead of only income, infringe upon the principle of legality connected to the right of privacy, as well as the principle of equality and non-discrimination. eans that will be taken into account has broadened. For exemple: the income of immovable goods, savings and insurance will be taken into account.

E.M., the plaintiff is involved in a number of judicial procedures. He invoked an action for annulment or partial annulment before the Constitutional Court since the new Act would have the consequence of him losing his right to legal assistance, which he had before the Act came into force.

The non-profit organisation “Aimer Jeunes” issued the same action for annulment or partial annulment since it argues that the Act infringes upon the rights of persons with a low income or those who are in a vulnerable situation. The new Act, they consider, restricts their right of access to justice.  

Key legal question raised by the Court

Does the fact that the offices for legal assistance (part of the Order of Lawyers) are mandated to investigate all means of livelihood, instead of only income, infringe upon the principle of legality connected to the right of privacy, as well as the principle of equality and non-discrimination. 

Outcome of the case

The Consitutional Court rejected the claim of the plaintiffs as unfounded. In its reasoning, the Court stated that Article 22 of the Constitution foresees that derogations to the right of privacy can exist, on the condition that they are inserted by means of a law. Furthermore, a delegation of power is not contrary to the principle of legality if that delegation is described sufficiently accurately and applies to measures which are described by the legislator. The Court emphases that Article 22 of the Consititution foresees in an accurate and sufficient description that foresees interference to the right of privacy by the legislator.

The legislator has accurately set out the possible interference to the right of privacy since this is not applicable in all situations. This interference only occurs when a person applies for legal assistance. Therefore, the legislator has defined accurately enough when interference can occur.

Lastly, the Constitutional Court stated that by changing the concept to all manners of livelihoods, the legislator actually promotes equality as it prevents individual differences in treatment amongs the persons applying for legal assistance.

Paragraphs referring to EU Charter: 

“B.9.1. The second and third pleas in the two cases are derived from the infringement of the principle of legality enshrined in Article 22 of the Constitution, which guarantees the right of privacy, read in conjunction with Articles 10, 11, 23, 33, 37, 105, 106 and 108 of the Constitution, Articles 8 and 14 of the European Convention on Human Rights, Article 26 of the International Covenant on Civil and Political Rights, Articles 20 and 21 of the Charter of Fundamental Rights of the European Union and the general principles of legality, legitimate expectations and legal certainty.

Paragraphs referring to EU Charter (original language): 

“B.9.1. Het tweede en het derde middel in de twee zaken zijn afgeleid uit de schending van het wettigheidsbeginsel vervat in artikel 22 van de Grondwet, dat het recht op de eerbiediging van het privéleven waarborgt, in samenhang gelezen met de artikelen 10, 11, 23, 33, 37, 105, 106 en 108 van de Grondwet, met de artikelen 8 en 14 van het Europees Verdrag voor de rechten van de mens, met artikel 26 van het Internationaal Verdrag inzake burgerrechten en politieke rechten, met de artikelen 20 en 21 van het Handvest van de grondrechten van de Europese Unie en met de algemene beginselen van wettigheid, gewettigd vertrouwen en rechtszekerheid.”

Language: 
Dutch
Deciding body (original language): 
Grondwettelijk Hof / Cour Constitutionnelle
Language: 
Dutch